Dwyer ruling was correct... but he won’t be a free man any time soon
LAST week, the High Court gave judgment in a challenge brought by convicted murderer Graham Dwyer against the 2011 Irish legislation which gives the gardaí the ability to access individuals’ phone-call and data records for use in their criminal investigations.
High Court judge Tony O’Connor ruled in Dwyer’s favour in that the legislation breached European Union law and the European Convention on Human Rights, because the retention of data allowed was too general and was not subject to prior review by a court or independent authority.
Initially, it might have been felt that the judgment would mean that Dwyer would have to be released immediately. Law-abiding citizens might have worried, on hearing the judgment, that it would lead to an opening of the floodgates whereby many convicted criminals would be let back out on the streets.
However, on closer reading of the judgment, it is clear that Dwyer will have many further hurdles to jump before he can get his conviction overturned. The judge said that Dwyer had not established, in his case, that the actual operation of the 2011 Act, was inappropriate, unnecessary, and disproportionate.
Also, other convicted criminals who might have been put away as a result of surveillance used by the gardaí under the 2011 Act will not necessarily benefit as a result of this judgment. But no doubt some will try.
However, the judgment does raise, in very stark terms, the difficulty our security services have in fighting crime, on the one hand, while, at the same time, complying with Irish and international law designed to protect individuals’ privacy rights.
IWAS Minister for Justice from 2008 to 2011, and a substantial amount of my time was taken up with advancing proposed legislation dealing with data retention under a 2006 EU directive in this regard. Under this directive, EU member states were required to store citizens’ telecommunications – for a minimum of six months and a maximum of 24 months.
At the time, I found great difficulty in drafting this legislation in that I was trying to steer a middle path between, on the one hand, providing the security services with an additional tool in the fight against crime, and, on the other, dealing with a very intense lobby by interested groups who were claiming that the EU directive’s provisions were an excessive intrusion into the private lives of citizens.
Also, the telecom companies here were making the case that forcing them to retain so much data for up to two years would have a huge negative effect on their expansion in Ireland.
They maintained that a tougher regime here in Ireland, as opposed to other EU member states, would mean that any further foreign direct investment by their parent company here would be put in jeopardy.
Also, the European Commission was putting huge pressure on the Government to comply with the directive, to such an extent that it instituted infringement proceedings against Ireland because of our delay in finalising our national legislation.
In the end, as a compromise, the Government, on my recommendation, decided to mandate telecom companies to retain internet data for one year and telephone data for two years. The law came into force in early 2011.
However, in 2014, the European Court of Justice found that the original 2006 EU directive was invalid, which meant that our 2011 law was liable ultimately to be overturned. It was this law which Dwyer successfully challenged in recent times.
At this remove, I cannot disagree with Judge O’Connor’s ruling, particularly in that it criticised the mass retention of electronic communications data.
However, when I was dealing with this draft legislation, I was doing so in an atmosphere in the country where gangland crime was at its height, particularly in Limerick and Dublin.
Shane Geoghegan and Roy Collins, among others, were shot down in cold blood.
I had been made acutely aware by members of An Garda Síochána that the use of surveillance technology was crucial in the fight against crime.
I was aware that it had been extremely successful in solving and preventing many types of crime, such as tracking paedophile activity and so-called tiger kidnappings.
With this in mind, I arranged for the passing of the Criminal Justice (Surveillance) Act 2009, and also fairly draconian changes to the Offences against the State Act.
The Surveillance Act, and also the 1993 Interception of Postal Packets and Communications Messages Act, are the prime pieces of legislation used by our security services to monitor telephone and internet data in the targeting of known criminals.
THESE two acts differ from the 2011 Act in that they relate to targeting a particular suspected person or persons, whereas the 2011 Act involves mass surveillance involving the indiscriminate retention and storage of communications data affecting every individual even those who are neither suspected nor are likely ever to be suspected of any wrongdoing.
Again, the 2011 Act involves very few limitations or checks on the operation of its provisions, whereas targeted surveillance under the 2009 and 1993 legislation is subject to more stringent conditions.
It is mainly for this reason that Judge O’Connor had no other option but to rule against the 2011 Act.
He warned that the State should ‘tread carefully’ in the use of data retention, for fear of infringing the privacy rights of individuals.
In recent times, we have seen many instances whereby the indiscriminate holding of databases can lead to abuses by those in possession of that material.
The Department for Justice is currently engaged in drafting a new Data Retention Bill which will no doubt take Judge O’Connor’s judgment into account.
However, law-abiding readers should have no fear that the recent judgment will lessen the ability of the gardaí to fight crime by accessing telecommunications data of suspected criminals.
There is already more than enough legislation on our statute books to empower them to investigate crime in this respect.